ESA Appeal documents used over 12 months old ?

I am preparing my appeal papers for submission (mandatory consideration changed nothing) and would like some advice if possible.
I have been on Incapacity benefit and DLA (lower rate care - higher rate mobility) for many years and I was awarded 0 points at my assessment for transition from IB to ESA.

My assessment lasted less than 20 minutes and there was no physical examination (my condition is physical, ankylosing spondylitis with chronic back and spinal pain), the HCP made up nearly all of the report and ignored my condition.

Anyway there are a few points I would like advice on if anyone can help?
My assessment was in early November this year (2015) but the ESA50 that I filled in was returned to them in August 2014 and my doctors notes ESA113 they obtained from my GP were also in August 2014, both over 15 months old. Can I take issue with this in the appeal?

The DWP (decision maker) does not accept my complaints about the HCP that carried out my assessment and say I should complain to Maximus (yes passing the buck).
Do I complain to Maximus and await a reply and explanation? Or is this just another waste of time? Is there any merit in this in front of the tribunal?
I believe I should be entitled to an adjournment if the reply and explanation does not arrive in time for my oral appeal hearing?

I would also like to request my previous medical assessment and physical examination carried out many years ago by the DWP (incapacity benefit) when they noted my condition and reported it correctly. (My condition is a degenerative one - it can not get better) Could I refer back to this previous report at my appeal?

Any thoughts or help with this matter would be appreciated.

Hi Nick, and welcome to the forum. On the assumption that you are also new to the site this link should help you find your way around.

Welcome to Benefits and Work

I am sorry that you are having to go through the appeal process I will try to take your questions in turn -

We have had a lot of people called for face2face assessment without a recent ESA50 being completed. In these cases we recommend filling in a new ESA50 or providing a document summing up any changes in condition since the last one was submitted. Did you do this? DWP can argue that they cannot consider information that they were not given, but now is your chance to do so.

Any complaint that you make to Maximus (or the HCP's governing body) will be a separate matter from the appeal hearing. Your job at appeal is to show that you meet the ESA descriptors as this is the only way you will be awarded the benefit, discrediting the assessment will not, of itself, do this. Complaining might not help, but at least Maximus/DWP cannot continue to claim that they have no reason to believe people are unhappy with the process!

Do you have a clear idea of which descriptors you believe you meet?

Qualifying for the WRAG

Qualifying for the Support Group

DWP do not keep paperwork relating to claims for ever but there does not seem to be a consistent policy for this - we have members who have been told their paperwork was destroyed after 18 months and others who have accessed documents much older - the only way you will know is to try. How helpful it might be will depend on the content.

If/when you have other questions please reply to this message and we will do our best to help

Thank you Mrs Hurtyback,

You say " we recommend filling in a new ESA50 or providing a document summing up any changes in condition since the last one was submitted. Did you do this"?

No I didn't do this and I was not aware that I was allowed to, but surely doing it now is to late?
Should I request a new ESA50 from the DWP and ounce I have it completed who would I produce it to? The DWP surely would not be interested once they have turned down my mandatory reconsideration? Would I send it along with evidence to the tribunal? (Would the tribunal consider a fresh ESA50 submitted after my assessment)?
There are things I could add to a new ESA50 but on the original there was a lot of detail that should of been taken in to account and it appears it was just ignored.
It appears to me that the DM based their decision entirely on the assessors report and ignored any evidence I supplied.


I believe the descriptors that I qualify for are :-

Mobilising - 1(a) (ii) repeatedly mobilise 50 meters within a reasonable timescale because of significant discomfort or exhaustion, which scores 15 points.

I do not consider that using a wheelchair is applicable to my circumstance, as I have been advised by my Doctor and previously by my consultant to keep as mobile (as very limited as it is) as possible and exercise and anti inflammatory drugs are the cornerstones of treatment. - Therefore using a wheelchair would be detrimental to my long term health.

Upper tribunal – Judge Gamble CSE/151/2012

Upper tribunal – Judge Mark CE/869/2013

This I believe would qualify me for the support group.

Standing and sitting 2.(b) Can not stand or sit for 30 mins. Which scores 9 points.
Again I can not be still for any length of time.

Getting about 15(b) Is unable to get to a specified place with which the claimant is familiar without being accompanied by another person, this scores 9 points.
I am afraid of going out and have become increasingly more so, I panic and will do all I can not to leave the house.

The problem with this last descriptor is that I have nothing on file as evidence, although my Doctor was aware of this developing in late 2014 he then retired and we have had many locum Doctors since that date and they don't know my condition.
The HCP at the assessment totally disregarded this and put it down to physical heath!

I have been well and truly stitched up by the HCP and the DWP seem only to listen to their opinion and disregard whatever I say. This system is so biased its unbelievable.

The tribunal will look afresh at your application and evidence. I am not suggesting that you submit a new ESA50 now but now is your chance to explain your condition as it was at the date of the decision, rather than the date of the ESA50.

I sent my appeal of to the tribunal service before Xmas and on 24th December I got a message saying they had received it and had 4 weeks to send my case to them. Ok, no problems with that.

I put on my appeal papers that I requested to be paid ESA whilst waiting for the tribunal (I have not put in a claim for JSA in the meantime) so I rang them today to ask if I would be paid and got some vague answers. Firstly the man said I needed to fill in a ESA 3 then changed his mind. He then said I needed to send in a "fit note" by post.

I was on IB/SDA for many years and never needed to supply "fit notes" and didn't realise that I had to supply one now to get a payments whilst I wait for the tribunal.

Please could someone advise me if this is correct? Do I now have to see my GP and get a "fit note" to send in so I can get temporary ESA before the tribunal?